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CHARGES AND SPECIFICATIONS 



COPY C)T:^ ORDERS. 



DEFENCE OF ACCUSED. 



READ BKFOnE A 



COURT MARTIAL 

convenp:d in the city of new TORK, 

December 10, 1S63. 



NEW YOItK: 

Wm. C. Bf'.rANT &: Co., Printehs, 21 Nassau Sirket, cor. Libertt. 



1SG3 





U^ L 







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\ 

) CHARGES AND SPECIFICATIONS. 



Charges and Specificatioxs preferred against Warren Webster, 
Assistant-Surgeon U. S. A. 

Charge I. — "Disobedience of orders." 

Spfcification — "la tins, tLat lie, the said Warren Webster, K&^L 
Surgeon U. S. A., in charge of the McDougall General Hos- 
pital, having received an order from Brigadier-General Canbt, 
commanding the city and harbor of New York, (through 
Brigadier-General Biiowx, commanding Fort Schuyler,) based 
upon an order from the War Department, (which said order 
accompanied the order of Brigadier-General Caxbt, and was 
read by Surgeon Webster,) to arrest and send to Fort Colum- 
bus, private Philip Fitzsimmons, of Company ' F,' 40th Kegt. 
N. Y. Volunteers, a deserter and an inmate of his Hospital, 
did refuse to obey the said order. All this at or near Fort 
Schuyler, New York, between the 1 0th and 1 5th November, 
1863." 

Charge n.-—"- Conduct prejudicial to good order and military dis- 
cipline." 

Specification — In this, that he, the said Warren Webster, Assistant-^ 
Surgeon TJ. S. A., in charge of the McDougall General Hos- 
pital, having refused to arrest and send to Fort Columbus 
private Philip Fitzsimmons, of Company ' F,' 40th Regiinent 
N. Y, Volunteers, did then have presented to him by Capt. 
Haxxax, an order from Brigadier-General Brown, command- 
ing Fort Schuyler, directing him, the said Captain Hanxan- 
to repair to the McDougall General Hospital and arrest private 
Philip Fitzsimmons, of Company * F,' 40th Regiment, N. Y* 
Volunteers, did forbid the said Capt. Hannan to enter any 



ward of his hospital, and did also fail to give him any assist 
ance in carrying out the order of Brigadier-General Brown'. 
All this at or near Fort Schuyler, on or about the 15th No- 
vember, 18Go. 
(Signed) Geo. J. Stanxard, 

Brigadier-General Commanding. 

OkDEH CoXVIiNIXG COUUT. 

■ SPECIAL ORDERS, ) «EAD QUARTERS, 

\ DnPARTMENT OF TOE EaST, 

. No. 353. ) Kciv York City, December 1lh,\8GZ. 

I. A General Court Martial is hereby apjiointed to meet at New 
York City on the 10th day of December, 1863, at 10 o'clock A. M., 
or as soon thereafter as practicable, for the trial of such persons as 
may be brought before it by authority from these Head Quarters. 

Detail fuj- the Cuurt. 

1. Major F. F. Dent, 4th U. S. Infantry. 

2. Captain AYilliam Clinton, 10th U. S. lufantry. 

3. Captain David P. Hancock, Yth U. S. Infantry. 

4. Captain "\Ykight Rives, additional Aide-de-Camp. 

5. Captain Thomas Lord, Jr., Aide-de-Camp. 

0. First Lieut. Samuel P. Crowley, 4th U. S. Infantry. 
V. First Lieut. Clarence M. Bailet, Gth U. S. Infantry, 

Captain Royal T. Frank, Sth U. S. Infantry, Judge Advocate. 
No other officers than those named can be assembled without 
manifest injury to the service. 

Should any of the officers named in the detail be unable to altcnd 
the Court will nevertheless proceed to and continue the business be- 
fore it, provided the number present be not less than the minimum 
jirescribed by law. 

P>y command of Major-General Dix. 

D. S, Van Buren, 

Asst. Adjt. General. 



Endouskmf.nts on Private Fitzsimmons, Dk5Cri['tive Roll. 

Col. J. B. Fry, 

Pro. Mar. Gen., 

Washington, D, C. [ 

Please have the within named soldier arrested and returned to his 
regiment. He was transferred from the 38th Regiment N. Y. V. as 
absent without leave ; since then we have received notice that he de- 
serted from hospital in Washington. He is now at Fort Schuyler, 
N. Y., and tlie Surgeon sends daily almost for his descriptive list. 
Very respectfully, 

Your oVt serv't, 
(Signed) T. W. Eg an, 

Col. 40th N.Y.V. 



WAR DEl'ARTMENT, 

Provost Marshal-General's Office, 

]Vasldnglon, D. C, Nov. lOlh, 18G.3. 
Respectfully referred to Brig. Genl. CANBf, Comdg. U. S. Forces, 
N. Y. H., for his action. 

By order of Col. Fkv. 

(Signed) W. R. Peon, 

Capt. U. S. A. 

HEAD QUARTERS, 

U. S. Troops in Citv and Harbor, 

JSTewYork, Nov. II th, 18G3. 
Respectfully referred to Bvt. Brig. Genl. Browx, who will have 
this man arrested and sent to F. Columbus, thence to be forwarded to 
bis regiment by first opportunity, accompanied with this paper. 
By order Brig. Genl. Canby. 
(Signed) C. T. CnRisxENSEX, 

Asst. Adjt. Gen. 



head quarters, 

Fort Schlyler, N. Y. H. 

Nov. nth, 1863. 
Respectfully referred to Assistant-Surgeon Webster, U. S. A., in 
charge McDougall Uospital, who will comply with the above endorse- 
ment. 

By order, 

Bvt. Brig. Geul. Brown, 
(Signed) E. C. Woodrukk, 

Lt. Tth Infantry, 

Post Adjt. 

McDougall General Hospital, 

Fort Schuyler, Xov. 15, 18C3. 

Respectfully returned. 

Conceiving that the General ITospitals are under the sole direction 
of the Surgeon General of the Army, I consider it my duty to obey 
orders directing the transfer of patients from this Hospital, only when 
received through the Surgeon General, or through his representative 
in this Department, the Medical Director. 
Respectfully submitted. 
(Signed) Warren Webster. 

Asst. Surg. U. S. A,, 

In charge. 

nEAD-QuAKTKRS, FoRT ScULYLEff, | 

November 15th, 1863. j" 

Capt. llannan, officer of the day, will, with a guard of six men, 
proceed to the hospital, arrest, and bring to this Post, Private Philip 
Fifzsimmons, of Company " F," 40th Regt., N. Y. Vols. 

Capt. llannan will report to Ass't Surgeon Webster, in charge of 
the hospital, and request him to turn the man over to his charge. If 



Doctor Webster declines or refuses, tben the soldier will, if necessary, 
be forcibly brought. 

Capt. Hannan will have no argument or controversy, or receive 
any papers or protest, but will simply obey these orders. 

(Signed) Harvet Browx, 

Br. Brig. Gen'l. 

Proceeded as directed on the within order; saw Dr. Webster ; 
made known the order, a copy of which was requested and given ; 
on requesting information as to vi-here tbe man could be found, was 
referred to Hospital Register; referring to which ascertained the man 
was in ward l,sect. B; proceeded there with command ; while there 
Medical officer of the day entered, and asked if it was the intention to 
take the man away. On being answered "Certainly, it was," he left 
the room. Took the man from thence without opposition, and de- 
livered him in charge of the surgeon at the Post Hospital. 
(Signed) J. C. Hannan, 

Capt. 20th N. Y. Battery. 
Officer of the Day. 



Defenxe. 

The accused having been brought to trial upon the grave charges 
of " disobedience of orders," and of " conduct piejudicial to good 
order and military discipline," desires, before the Court proceeds to de- 
liberate and decide upon the question of guilt, to respectfully submit 
the following suggestions of defence : 

It is con6dently believed that upon careful reading of the specifi- 
cation to the first charge, this Court will find, in the first phice, that 
the specification cannot, by reason of its want of distinctness and cer- 
tainty, be made the basis of a verdict, and, in the next place, that if 
an offence by the accused is alleged therein with sufficient explicitness 
of fact and circumstance, there is not requisite evidence produced to 
sustain it. 

The specification to the first charge nowhere alleges that General 
Canby addressed or directed any order to the accused. It nowhere 
sets forth that the accused received an order directed to him by Gen- 
eral Canby. 

So far as anything appears in the specification, the order of General 
Canby might Lave been directed to any one of a hundred persons, 
and neither one of them the accused. It is respectfully submitted that 
before this Court can render a verdict of guilty on the first specifica- 
tion, it must find that the"specification sets forth inapt words a lawful 
order ; that sucli order was addressed to and read by the accused, and 
the order must be described with perfect precision, and not in vague 
terms. 

The accused, therefore, humbly asks that the specification to the 
first charge be thrown out by the Court, because it has no allegation 
of lawfulness, and has not that certainty, particularity, and precision 
whicli are required in specifications by the custom and law of the 
service. 

If, however, the Court shall find the specification to the first charge 
sufficient, in its averments, then the accused suggests that there has 
been no proof of any order from the Secretary of War, as the Ian- 



9 



guage of the specification would leave it to be inferred- There has 
not been and Hhere is no documentary evidence that there has been an 
order from the War Department, or the Adjutant General in respect 
to Fitzsimmons. The statement of the specification and General 
Brown to the contrary, is error. 

The endorsement of Colonel Fry, of November 19lh, 1863, was but 
an endorsement of reference, and contains no word of command, 
either to General Canby or Assistant-Surgeon Webster, or anybody 
else. The Adjutant-General of the xVrmy, never, upon the evidence, 
saw or heard of it. 

Again, there is utter absence of any proof that General Canby 
addressed an order to the accused, or that the accused received and 
read an order directed to liim by General Canby. There is evidence 
that General Canby addressed an order to General Brown to have 
Fitzsimmons arrested, and the proof is conclusive that General Brown 
obeyed that order. So that the only order in the case given by 
General Canby was obeyed. 

As if to put it beyond all controversy that the order of General 
Canby was directed to General Brown, the last-named officer swears 
distinctly, in his direct examination, that General Canby's order was 
directed to him. General Brown's language, as a witness, is as fol- 
lows : 

" On an envelope from Department head-quarters, New York city 
" and harbor, was an order directing >ie to bave the man arrested 
" and sent to Fort Columbus." 

Thus every thing in the case — the papers, the official record, the 
testimony of General Brown himself— all unite to fix indubitably that 
the only order issued by General Canby was addressed to General 
Brown, commanding him, and not the accused. 

There is testimony that General Brown gave Assistant-Surgeon 
\\'ebster an order, which was respectfully returned, with reasons ; but 
for that act of the accused, there is no averment in the specification, 
and thus, no charge. The coiicUidiiig words of the first specifica- 
'tion say explicitly that it was the order of General Canby which was 
disobeyed, and not the order of General Brown< 
2 



10 



, It is a familiar rule in Courts Martial that a 2:)resum ption of inno- 
cence attends the accused until it is overtlirown by positive evidence, 
and, applying that principle to the present case, if there be reasonable 
doubt in the mind of the Court, as to whether the order of General 
Canby was lawful, or can, in its legal effect be fairly considered an 
order to Assistant-Surgeon Webster, when it makes no allusion to 
him, or the McDougall General Hospital under his charge, then the 
accused is entitled to the benefit of the doubt, and for that reason, 
with the others assigned, there must be, on the specification of the 
first charge, a verdict of xot I'ROVEKr. 

And if the specification to the first charge be not proved directly 
against the accused, then, since (according to General Order No. 1 1 
of February 5, 1862) a person can only be guilty of a charge by 
being guilty of the matter stated in the specifications of the charge, 
there must be verdict of not guiltv, on the first charge in the 
present case. 

If, however, the Court shall be of oj)inion that the specification to 
the first charge is sufficient in its averments, and that all its material 
allegations are proven, then the accused humbly desires to be heard 
upon the larger question of disobedience of orders. 

And, first of all, he prays that whatever he may suggest may not, 
under the circumstances, seem to any member of the Court to be im- 
pertinent or unbecoming. Tlie accused does not fail to realize how 
humble is his rank in the military service. Besides that, he ap- 
preciates the fact that he belongs to a corps which, under existing re- 
gulations, cannot be represented in a Court convened to try, and it 
may be, punish one of its members. And yet he feels that this is a 
Court in whose presence and whose decrees an oiBcer, even as humble 
as the accused, will have tl;e same exact treatment and justice as 
would the highest officer in lineal rank in the army. 

The accused recognizes, to the fullest extent, the vital necessity of 
military unity and subordination, in order to secure the jierfection of 
military operation. lie appreciates that, in an army or a depart- 
jnent, there can be but one will, and that will supreme within its 
sphere. He knows that an officer is bound to obey the last order not 



11 

manifestly illegal, which is directed to him by the superior appoiiitea 
over him, and leave consequences to take care of themselves. But 
none of these admitted axioms in military life he submits, with great 
deference, determine to what officers it is given to discharge or trans- 
fer patients from a General Hospital. 

It is important to bear in mind that nothing, iu the present case; 
touches or questions the power or authority of Major-General Dix, 
the Department Commander, to order a medical officer in charge of 
a General Hospital to deliver up, for transfer, any patients under his 
charge. The accused never has hesitated to obey the orders of th.^ 
Department Commander in respect to the management of the hos- 
pital ; because, among other things, he considers himself bound to 
assume, that every order issued from that source has the concurrence 
of his superior medical authority, which is the Medical Director on 
♦'"^ °':~^^ uf ine Department Commander. The order now in con- 
troversy, however, did not emanate from the Adjutant General of the 
Army, or Major-General Dix. And the question now raised, in re- 
\nect to control of General Hospisals, is not an issue between the 
m\ dical department and line officers ; but is an enquiry whether the 
Mifi^iry Commander in the city of New York, or the Commander of 
the 1\. *^ at Fort Schuyler, can, like the Department Commander, 
exercise control over patients in General Hospitals. 

Neither is this a question of the authority of a Post Commander 
over his own Post Hospital and Post Surgeon ; but, as just stated, 
it relates solely, in the opinion of the accused, to the amount of juris- 
diction which subordinate Military Commanders have, independent of 
the Department Commander, and the Surgeon-General, over General 
Hospitals. 

The present case finds that Fitzsiramons was a deserter from the 
40th Regiment of New York Volunteers ; that he, in some way, 
found himself iu General Hospital on Governor's Island ; that, on the 
15th of October, 18G3, he was, through Medical Director McDougall, 
transferred as a patient to McDougall General Hospital ; that 
November 1st, 1863, a severe surgical oj^eration was performed on 
him ; that eleven days thereafter General Brown ordered the accused 



12 

to arrest the man and send him to Fort Columbus ; that, at that 
time, the man was, by the surgical operation, confined to his ward, 
his wound dressed twice each day, and his arrest and transfer danger- 
ous to his life ; that the surgeon in charge of the ward reported him 
unable to be moved, except as a patient ; that the accused endorsed 
on the back of General Brown's order the following : 

" Conceiving that the General Hospitals are under the sole direc- 
tion of the Surgeon-General of the Army, I consider it my duty to 
obey orders directing the transfer of patients from this hospital only 
when received through the Surgeon-General, or through his repre- 
sentative in this department, the Medical Director." 

That General Brown thereupon directed his officer of the day to 
remove the man by force from the General Hospital, which was done ; 
that the man was taken out, without medical examination, by the 
dersons removing him, into the place or condition of his wound, and 
in a cold rain-storm, made to walk a long distance, and in the end 
sent to Fort Columbus, where it was found that he was not fit or able 
to be returned to his regiment. 

The accused, it is alleged, offended by respectfully representing to 
General Brown the opinion of the accused that General Hospitals 
are under the direction of the Surgeon-General, and therefore, that 
orders, directing transfer of patients, must come through that officer, 
or his representative in the department, the Medical Director. 

Is punishment to be inflicted for making such representation ? Did 
not General Orders, Special Orders, and the custom of the Medical 
Department warrant such an interpretation ? General Orders Nos. 
30, of 18G2, and 308, of 1863, it will be remembered, start with the 
unconditional statement that General Hospitals are under the direc- 
tion of the Surgeon-General ! ^Yhat can those orders mean if they 
do not bear out the construction given them by the accused ? The 
Surgeon-General, in an endorsement of August 13, 18G3, directed to 
Medical Director McDougall, reiterates General Order No. 3G, and 
says, that the Secretary of AVar had decided in a case coming up 
from Towa, in conformity witli this General Order, and against the 
authority of Brigadier-General Roberts, commanding the district of 



13 



Iowa, to interfere with General Hospitals. Not only that, but Major- 
Geueral Ilalleck, in an enilorsement commenting on the conduct of 
General Brown, in relation to McDougall Hospital, and produced 
here in Court, maintained that military commanders, subordinate, like 
General Brown, to the Department Commander, had no authoiity to 
interfere in the management of General Hospitals. 

So, also, it has been proved here that Medical Director McDougall 
decided, in a case of conflict with General Brown, that the McDougall 
General Hosjiital was self-sustaining, and not comected with the 
l*()st at Fort Schuyler. How, if the Court please, could a subordi- 
nate medical officer, like the accused, surrounded with such prece- 
d'Mits and orders, but think an order like that of General Brown 
manifestly contrary to General Orders and special decisions, and so 
unlawful ? At least, will not this condition of rules and regulations 
prevent the Court from finding that the accused acted either wilfully 
or with wrong intent ? 

The accused did not suppose that any thing contained in General 
Order No. 3G, of Tth April, 1802, in relation to the duties of the 
Military Commander in the City of New York, conflicted with this 
theory of the exclusive supremacy of the Surgeon Generrtl and the 
Department^ Commander in General Hospitals. In the fiist place, 
General Order No. 36 must, he assumed, be so interpreted as to give 
force to all its requirements, and harmony of one part with another ; 
that it must be read and construed as n whole. Its keynote and its 
starting point are the declaration that " General Hospitals are under 
the direction of the Surgeon-General." 

Then, the second, third, fourth, and fifth clauses go on to provide, 
after again declaring that all General Hospitals in a city are entrusted 
to the chief medical officer, how disabled men in hospitals are to be 
discharged from service by Military Commanders, not as General 
Brown in his evidence would seem to indicate, upon his own will, 
but only on certificate of a Medical Officer. Then the sixth clause 
defines that '• the Military Commander's duties in reference to all 
troops and enlisted men, who happen to come within the limits of 
his command, will be precisely those of a commanding officer of a 



14 



Military Post." This sixth section harmonizes with the first section 
by interpreting the words " all troops and enlisted men who happen 
to come within the limits of his command," to mean "all troops and 
enlisted men," except those in General Hospitals, which, by a previous 
clause, are placed under sole charge of the Surgeon-General. So 
also the requirements of the seventh section, that Military Command- 
ers collect "stragglers," and send them forward to their regiments, 
does not touch Fitzsimmons' case, for he was not a " straggler," the 
accused believed, within tlie meaning of General Order No. 36. He 
was first a patient in the General Hospital on Governor's Island, was 
next regularly transferred by name to McDougall General Hospital, 
by order of the Medical Director ; was borne on the muster-roll of 
the latter hospital and reported to the Adjutant-General, and while 
in McDougall General Hospital was not only under its guards, but 
was enveloped by the sentinels of General Brown, who surrounded 
the peninsula on which that hospital stands. 

The ninth clause of General Order No. 36 provides that the Mili- 
tary Commander cannot order patients in a General Hospital to join 
their regiments, until the Chief Medical Officer shall report them 
"fit." 

The accused found in the clause of General Order No 51, of May 
.10, 1862, which directs "Commanders of Departments to designate 
some officer in each city or toivn where there is a General Hospital, 
to perform the functions assigned to Military Commanders in General 
Orders No. 30," what appeared to him confirmation of the interpre- 
tation that the Surgeon-General was to control the admission, man- 
agement, treatment, and time of transfer and discharge of patients 
therefrom, and the Military Commander was only made responsible 
for their custody and transportation when fit to be " transferred," or 
for the authentication of their discharges when pronounced unfit for 
service by the Medical Officer. 

And finally, as if to put to rest all doubt about the meaning of 
Order No. 36, the Secretary of War himself, in the Iowa case, had 
put upon it a construction, Avhicli the accused assumed was conclusive 



15 



every wUeie, and which he veiitmc-s now to hold upas a shield against 
any threatened punishment. 

In view of such orders and precedents, the accused implores the 
Court to bear in mind that, even upon the testimony of the prosecu- 
tion, this is not a case of disobediece of an order where there was no 
reasonable ground to suppose the order was erroneously issued ; and 
also to bear in mind what character for respectful, prompt obedience 
to superiors, General Brown and Surgeons Abadie and Sloan — offi- 
cers of long service in the regular army^ — give the accused. General 
Brown testifies that he has "found the accused courteous and re- 
spectful," and not " captious, or disposed to give annoyance." The 
testimony of Surgeon Abadie was to the same purport. There are 
no presumptions, then, that the accused intended or wished to give 
annoyance to General Brown in the present case. So far from that, 
the accused solemnly affirms, that up to the occurrences now on trial, 
from no medical officer in this Department, or elsewhere, did he ever 
hear the suggestion or intimation that the Surgeon-General had not 
the entire charge of General Hospitals. Medical officers with whom 
he has conversed, including those high and low in rank, have agreed 
in opinion that according to the directions of the War Department 
no military officer in the Departmeat of the East, lower in command 
than Major-General Dix, could, without intervention of the Medical 
Director, remove patients from General Hospitals. The accused did 
not doubt that such was the law and rule of the service. He found 
in General Orders No. 65, of June 12th, 1862, that ''each Medical 
Director must, under the orders of his Department Commander, reg- 
ulate the distribution of the sick and wounded to the hospitals within 
the Military Department to which he belongs." The General Order 
seemed to make it clear that no one but Major-General Dix and Med- 
ical Director McDougall could regulate the distribution or tranfer of 
patients. Again, in the same General Order, the accused found pro- 
vision that officers whose duty it is to forward detachments of men 
from hospitals, " will take care that no men except those provided 
with written passes from their hospital surgeon, or the Medical Di- 
rector, shall be allowed to go." 



10 

So, General Order No, "z 8, of July 14tli, 18G2, appeared to the 
accused to conGrm tbe construction that a patient could not be or- 
dered out of McDougall General ETospital, without concurrence of the 
Medical Director, by an authority less than that of Major-General 
I)ix, whose order would be assumed to be by concurrence of the 
Medical Director, who is a member of the staff. That order (Xo. 
78) says, that while in General Hospitals, '' men will be under the 
fostering care of the Government while unfit for duty ; will be in po- 
sition to be promptly discharged, if proper, and, being always under 
military control, will be returned to their regiments as soon as they 
are able to resume their duties" And by General Order No. 30, 
the Chief Medical Director was ihe person to determir'.e when men 
were " able to resume their duties." 

In these allasioi s and comments on General Orders, the accused 
has no wish to influence exposition or construction of existing orders 
in respect to General Hospitals. He only desires humbly to lay be- 
fore this Court the reasons which constrained him him to make the 
endorsement he did on General Brown's order, to the end that the 
Court may not only judge of their correctness, but may consider 
whether or not the accused acted in good faith, and as an honorable 
officer. 

The Act of Congress and -General Order No. 308, in evidence, re- 
cite that : "• The Medical Inspector-General has, under the direction 
of the Surgeon-General, the supervision of all that relates to the 
sanitary condition of the army, whether in transports, quarters or 
camps ; the hygiene, police, discipline, and efficiency of the field and 
general hospitals; and the assignment of duties to medical inspect- 
ors," This General Order also directs surgeons in charge of general 
hospitals " to yield ^'J'owjsi compUayice with the instructions they may 
receive from medical inspectors on duty in the army, department, or 
district in whicli they are serving, on all matters relating to the san- 
itary condition of the troops, and of tlie hygiene, ])olice, discipline, 
and efficiency of hospitals." 

Can it be denied that the j^ropriety of removing from hos|)ital a 
soldier with a wound as dangerous to life as that described by Sur- 



ir 



geon Abadie, is " matter relating to the sanitary condition of troops" 
in hospital ? And if not, then this order commands " prompt com- 
pliance with the instructions" in relation to such removal which sur- 
geons in charge may receive from the IMedical Department ? Did 
Congress or General Orders intend to place general hospitals under a 
double head of medical officers, and ofiBcers not medical ? It cannot 
be denied that the Medical Department, like every other staff de- 
partment, must be and is, secondary and subordinate to the line of 
the army which does the fighting ; but still that admission does not 
necessarily decide whether it has not been determined by lawful au- 
thority that the Medical Bureau shall have charge and control over 
men iu general hospitals, who cannot fight and are removed from the 
theatre of active operations in the field. It appeared to the accused 
impossible that such general, all-embracing authority over general 
hospitals could be given to the Medical Department; that surgeons in 
charge of hospitals could be required to obey the Surgeon-General in 
respect to inmates, and yet that a subordinate commander in the 
line, with no claim to professional knowledge, had legal power to in- 
terfere and arrest the system which might be prescribed by competent 
medical authority. The Court will recall the clear testimony of Sur- 
geon Sloan on this point. It seemed certain to the accused that if 
General Brown had authority, independent of Major-General Dix, or 
the Medical Director, to order one man out of the hospital who was 
there as a patient, then he could order one hundred ; and, in the end 
could take away every male attendant and nurse, competent to ad- 
minister to the wants of the suffering; and thus not only impair but 
destroy the efficiency and usefulness of the institution. 

When the accused received the order of General Brown, unac- 
companied by endorsement of Major-General Dix, it was his inten- 
tion to detain the man in his ward in custody, report his condition to 
the Medical Director, and ask his direction. His reply, when re- 
ceived, would have been scrupulously followed. If it be said that 
report of the condition of the man should have been made directly to 
General Brown, and not through the Medical Director, the accused 
replies that, upon such orders, he has never made reports to General 
3 



18 

Brown, aud uever was iDstiucted that it was bis duty or tliat it wiis 
regular to do so. General Brown states in Lis testimony, that — 

** Dr. Webster makes no reports to me, and no reports of or from 
the hospital are made to the post ;" and he adds, " I do not con- 
ceive I have anything to do Avith tho reception or dismissal of the 
patients or their treatment." 

But the accused did respectfully inform General Brown that the 
man was a patient in the General Hospital, and that, in the opinion 
of the former, the man should not be given up except on permission 
of the Medical Director. The endorsement of the accused, on Gen- 
eral Brown's order, covered both those points. And, if it were not so, 
of what avail would have been any report to General Brown, who has 
testified that he considered his orders from General Canby to be 
" imperative," and thus to afford no opportunity for discretion. If 
discretion could be exercised in favor of a patient, it could have been 
on information that the man was a patient. But when General 
Brown gave the order to Captain Hannan to proceed with a squad of 
six soldiers and arrest the wounded man ; there was no opportunity 
to state his condition, because the former directed the latter to " re- 
ceive no papers or protest, but to simply obey the orders" to arrest 
and take away the man. 

The accused solemnly reiterates that, at the time he made the en- 
dorsement in question on the order of General Brown, he was inspired 
by no thought, purpose, or wish but to obey implicitly the commands 
of the superiors set over him in respect to the management of the 
General Hospital placed in his charge. He was moved by no spirit of 
disrespect to General Brown. An order of arrest and transportation of 
a patient, unapproved by the Medical Director, had never before come 
under his observation, either in the McDcugall Hospital, or in tho 
Douglas Hospital, in Washington, of which latter institution the accused 
was for a long time in charge. His previous conviction of what the 
rules of the service required, were strengthened on careful inspection 
of all the endorsements in the present case, by finding that the letters 
of Colonels Egan and Fry, and the order of General Canby to Gen- 
eral Brown, assumed the rpan to be at the post of Fort Schuyler, and 



19 

not in the General Hospital. The experience of the accused had 
been, as Assistant Medical Director Sloan testified his own to be, that 
soldiers in the McDougall General Hospital were uniformly described, 
in orders and official papers, as being in that hospital, and not merely 
at Fort Schuyler. If there was error of judgment and opinion in all 
this, it was an honest error, unaccompanied by any wilful or wrong 
intent. The accused believed that if Colonel Fry or General Canby 
had supposed the man to be in McDougall General Hospital, ihey 
would have transmitted the recommendation or order, through the 
Medical Director, to the surgeon in charge, and not have issued the 
order to General Brown. He was convinced that if, with a patient 
having a wound as serious as what Surgeon Abadie and Dr. Caldwell 
have described Fitzsimmons' to be, he had, without a protest, per' 
mitted the arrest and transfer, unbeknown to Major-General Dix, or 
the Medical Director, he would have received a rebuke, if nothing 
more, from his medical superiors. 

In respect to the documents (marked M, N, and 0, respectively,) 
which General Brown volunteered to put as testimony in the case, as 
if to make apparent the true legal relation existing in November last 
between the McDougall General Hospital and the General Com 
manding in the City and Harbor of New York, the accused only 
desires to say that they have no possible bearing on the issue on 
trial. The first two (marked M and N), were written previously to 
the passage of the Act of Congress of April 16th, 1862, which effected 
such radical changes in the Medical Department, and are both prior 
to the issue of all General Orders put in evidence here. As to the 
remaining document (marked 0), written one month after the pas- 
sage of the aforementioned Act, but ten days before the date of 
General Order No. 36, of April 7, 1862, it only directs conference 
with General Brown in respect to the appropriation of Bedloe's 
Island, and a place in New Jersey, by the Medical Department. 

Thus much has the accused deemed it proper to say in exposition 
of the grounds of his action. It now remains with the Court to 
find: 

1. Whether the endorsement by the accused, on the order of Gen- 
eral Brown, was a military offence. 



20 



'2i If an offence, whether it has been set forth in proper military 
form, in the specification to the first charge. 

3. What punishment shall be inflicted if the first two points are 
found against the accused ? 

In regard to the last inquiry, the first two having been subjects of 
consideration, the accused, in mitigation of sentence, can only point 
to the record of his humble service, as it has been entered on the 
records of this trial. Others have succeeded better and done more, but 
none have tried harder to discharge all the obligations of duty. As 
Post-Surgeon at Fort Larned, in 18G0 ; as Assistant-Surgeon in 
charge of Douglas Hospital iu Washington ; as Medical Inspector of 
the Army of the Potomac, by order of the General Commanding ; as 
Assistant-Surgeon in charge of the McDougall Hospital, the accused 
has, under the orders of his superiors, striven to his utmost to pro- 
mote the well-being of the sick and wounded, and the efficiency of 
the Medical Department. Errors of judgment on his part, there are 
doubtless many which he has committed, but errors of intention or 
wilful neglect, none. 

To the specification of the second charge the accused, on arraign- 
ment, not wishing to even seem to deny the commission of any act done 
by him, pleaded guilty, although the inexactness of a portion of the 
specification, in respect to failing to give any assistance, is made ap- 
parent by the return of Capt. Hannan. The accused, however, can- 
not deny that he forbade Captain Hannan to enter the wards of the 
hospital. He was inspired thereto in part by the reasons before as- 
signed in his comments upon the first charge, but chiefly by the fol- 
lowing report, already in evidence, and received from A. A. Surgeon 
Caldwell, who was the medical officer immediately in charge of Fitz- 
simmons : 

McDouGAL General Hospital, ) 
Fort Schuyler, N. Y., Nov. 15th, 1863. f 
Warrek Webster, 

Assistant-Surgeon, U. S. A., 

Surgeon in Charge : 

Sir, — I have the honor to report that Philip Fitzsimmons, private 



21 

of 40tli N. Y. v., fomieily of 38th N. Y. Vols., in Ward 1, Section 
B, under my charge, is suffering from a gun-shot wound of the left 
shoulder, which required !i surgical operation for the removal of a 
portion of the clavicle, on the 1st of Nov., 1863. The wound is now 
granulating favorably ; but I do not consider him in a condition to be 
transferred from this hospital at present in any other condition than 
as a patient. His wound requires to be dressed twice a day. 

I have also the honor to request that, in consequence of the critical 
condition of John Fallon, private of the 42d N. Y. Vols., Co. F, all 
visitors may be excluded until I again report on his condition, and 
that no occurrence likely to occasion this patient any excitement may 
be permitted in this Ward during this day. 

All of which is respectfully submitted by, 
(Signed) Jno. J. Caldwell, 

A. A. Surgeon V. S. A., 

In charge of 1 and 2, Section B. 

The accused assumed that the hospital was, in circumstances like, 
these, sufficiently under his charge to exclude any officer who, like 
Capt. Ilannan, was not of the Medical Department. He did not 
suppose it was prejudicial to good order and military discipline to 
thus comply with the request of the surgeon in charge of a patient, 
in order to save life. 

If his language would not be liable to misinterpretation he would 
say, that it is not the accused who, in respect to Fitzsiramons, has done 
acts *' prejudicial to good order and mihtary discipline." 

The Court cannot fail to remember the earnestness with which 
Surgeon Sloan, Assistant Medical Director, condemned interference 
with General Hospitals by subordinate commanders. He said : 

" It had been the source of a great deal of trouble and controversy. 
It has sometimes counteracted regulations adopted by the Medical 
Department. All the General Hospitals in this department are 
governed by certain regulations and instructions, [nterference with 
those regulations, without the knowledge of the Medical Director, 
has caused a great deal of trouble and annoyance," 



22 

How important it is to preserve rules and regulations unimpaired 
in the McDougall General Hospital will be appreciated by perception 
of the fact, that this institution has a capacity of two thousand beds 
and a corresponding staff of assistant-surgeons, hospital stewards, 
female nurses, and members of the Invalid Corps. To regulate so 
large a command of sick and wounded, it is easy to see that system, 
and subordination to one will, are vital. 

The surgeon in charge is held responsible not only for the public 
property there in use, and for making the institution, so far as may 
be, pecuniarily self-sustaining, but for the good and judicious treat- 
ment of each of the inmates. Is not every thing which interrupts 
the regular order prescribed for such an hospital " prejudicial to good 
order and military discipline ?'' 

That the accused maintained good order and good treatment there, 
is not denied ; and he invokes to his aid the evidence of his character 
as an officer, given by those who testified to it, and to the condition 
and management of the hospital under his charge. If the record 
discloses to the Court that the accused has been generally neglectful 
of his duties ; unmindful of the sick and wounded entrusted to his 
care ; or disrespectful, in any sense, to the superiors appointed over 
him, then let adverse judgment be pronounced. But if, on the con- 
trary, he has earned a character as an officer worthy of approbation, 
then the accused asks that it may, so far as justice permits, enter 
into, and, with the proof in respect to general and special orders, 
control the finding of this Court. 
(Signed) 

Warrek Webster, 
Asp.s.tant- Surgeon U. S. Army. 



APPENDIX. 



HEADQUAR'lEi^S DEPARTMENT OF THE EAST, 

New York City, January 14 /A, 18G4. 

GENERAL OKDKKS, ) 

No. 2. ) 

I. Before a General Court Martial wbich couveued at New York 
City, by virtue of Special Orders, No, 118, from these Ileadquarters, 
of December Vtli, 1803, and of which Major F. T. Dent. 4th U. S. 
lufjintry, is President, was arraigned and tried, Assistant-Surgeon 
Warren Webster, U. S. A., upon the following charges and specifi- 
cations, viz. : 

Charge 1st. 

" Disobedience of orders^ 

Specification. — '' In this, that he, the said Warren Webster, Assistant 
Surgeon U. S. A., in charge of the McDougal General Hospital, 
having received an order from Brig.-Genl. Canby, commanding 
the City and Harbor of New York (through Brig.-Genl. Brown, 
commanding Fort Schuyler), based upon an order from the 
War Department (which said order accompanied the order of 
Brig.-Genh Canby, and was read by Surgeon Webster), to 
arrest and send to Fort Columbus, Private Phillip Fitzsimmons, 



24 



of Co. ' F,' 40th Kegt. of N. Y. Voluuteeis, a deserter, and an 
inmate of his Hospital, did refuse to obey the said order." 
All this at or near Fort Schuyler, New York, between the 10th and 
16th of November, 1863. 

Charge 2d. 

" Conducl Prejudicial io Good Order and Mililary Discipline.^* 

Spccificuiwn. — " In this, that he, the said Warren Webster^ Assistant 
Surgeon U. S. A., in charge of the McDougal General Hospital, 
having refused to arrest and send to Fort Columbus, Private 
Phillip Filzsimmons, of Co. 'F,' 40th N. Y. Volunteers, did 
then have presented to him, by Captain Hannam, an order from 
Brig.-Geul. Brown, commanding Fort Schuyler, directing him> 
the said Capt. Hannam, to repair to the McDougal General 
Hospital, and arrest Private Phillip Filzsimmons, of Co. ' F,' 
40th N. Y. Vols., did forbid the said Captain Hannam to enter 
any Ward of his Hospital, and did also fail to give him any as- 
sistance in carrying out the orders of Brig.-Genl. Brown." 

All this at or near Fort Schuyler, on or about tlie 15th November, 
1803. 

To which charges and specifications the accused pleaded as follows: 

To the specification to the 1st Charge, " Not Guilty." 

To the first charge, " Not Guilty." 

To the specification to the second charge, " Guilty," 

To the second charge, "-Not Guilty." 

Finding. 

The Court, having maturely considered the evidence adduced, find 
the accused, Assistant-Surgeon Warren Webster, U. S. A., as 
follows: 

Of the specification to the first charge, '" Guilty." 

Of the first charge, " Guilty." 

Of the specification to the second charge, " Guilty." 

Of the second charge, " Guilty." 



25 



Sentence. 

And tbe Court does therefore sentence him, Assistant-Surgeon 
Warren Webster, U. S. A., "to be confined to the hmits of his Post 
for six months, and to be reprimanded in General Orders, by the 
General commanding the Department." 

II. The Major-General commanding approves the proceedings of 
the Court, as well as the sentence that Assistant-Surgeou Warren 
Webster be reprimanded in General Orders, and be confined to the 
limits of the Post for six months. In consideration of his high 
standing, and his reputation for subordination anterior to the events 
which led to bis trial, the Court recommends the remission of the 
sentence. While acknowledging, as the Major-General cheerfully 
does, the professional merits of Assistant-Surgeon Webster, he cannot 
permit so marked a breach of discipline as that which was clearly 
proved before the Court to go unpunished. Believing, with the 
Court, that the offence was founded in some degree on a misconcep 
tion of duty, which, however, would have been more pardonable in 
an ofBcer of less intelligence, the sentence of confinement to the 
limits of the Post at which Assistant-Surgeon Webster is employed, 
is reduced from six months to sixty days. 

III. The General Court Martial, of which Major F. T. Dent, 4th 
U. S. Infantry, is President, is dissolved. 



By Command of Major-General Dix^ 

D. T. VAN BUREN, 

Assistant Adjutant- General. 



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